[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 28, 2007
No. 07-11090 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00065-CR-FTM-29SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL TYLER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 28, 2007)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Michael Tyler appeals his 600-month sentence, where the applicable
guideline range was 292-365 months, after he pled guilty to transporting visual
depictions involving the use of minors engaged in sexually explicit conduct, in
violation of 18 U.S.C. § 2252(a)(1), being a parent or legal guardian who permitted
or assisted the sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(b),
and using a minor to engage in sexually explicit conduct for the purpose of
producing a visual depiction of such conduct, in violation of 18 U.S.C. § 2251(a).
On appeal, Tyler argues that his sentence is procedurally and substantively
unreasonable, and that it is excessive in violation of the Eighth Amendment.
I. Reasonableness of Tyler’s Sentence
We review a defendant’s sentence for reasonableness. United States v.
Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 767, 160 L.Ed.2d 621 (2005); United
States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005).1 After Booker,
sentencing requires two steps: first, the district court must correctly calculate the
guideline range; second, the district court must consider several factors listed in 18
U.S.C. § 3553(a) in arriving at a reasonable sentence. United States v. Talley, 431
F.3d 784, 786 (11th Cir. 2005). Tyler does not challenge the calculation of his
guideline range, but rather contends that his sentence was unreasonable.
A sentence may be procedurally or substantively unreasonable. United
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We need not address the government’s contention that plain error applies because we
can affirm Tyler’s sentence even under a review for reasonableness.
2
States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006). “A sentence may be
unreasonable if it is the product of a procedure that does not follow Booker’s
requirements, regardless of the actual sentence. Additionally, a sentence may be
substantively unreasonable, regardless of the procedure used.” Id. Our
reasonableness review is deferential, and requires us to “evaluate whether the
sentence imposed by the district court fails to achieve the purposes of sentencing as
stated in [§] 3553(a).” Talley, 431 F.3d at 788. The party challenging the sentence
“bears the burden of establishing that the sentence was unreasonable in light of
[the] record and the factors in section 3553(a).” Id.
In arriving at a reasonable sentence, the district court is required to consider
the factors set out in 18 U.S.C. § 3553(a):
1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Id. at 786 (citing 18 U.S.C. § 3553(a)). The district court shall impose a sentence
that is sufficient, but not greater than necessary, to comply with the purposes of
factors two through five listed above. 18 U.S.C. § 3553(a). It is sufficient for the
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district court to acknowledge that it has considered the § 3553(a) factors, but it
need not explicitly discuss each of them. United States v. Scott, 426 F.3d 1324,
1329 (11th Cir. 2005). We have recognized that “there is a range of reasonable
sentences from which the district court may choose.” Talley, 431 F.3d at 788.
Necessarily, there are also “sentences outside the range of reasonableness that do
not achieve the purposes of sentencing stated in § 3553(a) and that thus the district
court may not impose.” United States v. Martin, 455 F.3d 1227, 1237
(11th Cir. 2006).
In the instant case, Tyler contends that his sentence was procedurally
unreasonable because the district court failed to consider his lack of criminal
history, age, and drug addiction. The district court, however, did in fact consider
these mitigating factors by considering Tyler’s sentencing memorandum and the
pre-sentence investigation report. Furthermore, the district court expressly found
that Tyler’s conduct was not attributable to his drug abuse. Tyler also argues that
the district court was not permitted to rely on factors incorporated in the
calculation of his guideline range when conducting a variance under 18 U.S.C.
§ 3553(a). This argument, however, is not supported by our case law. See United
States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007).
Tyler argues that his sentence was substantively unreasonable because the
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district court created an unwarranted sentencing disparity. He cites various district
court cases in which defendants convicted of child pornography offenses received
sentences no greater than 180 months’ imprisonment. Assuming without deciding
that this approach is acceptable, the cases cited are distinguishable from the instant
case because, unlike Tyler’s conduct, none of the defendants in those cases
engaged in repeated sexual misconduct with multiple children including the
defendant’s adopted son, documented that conduct, and transmitted it over the
Internet. Tyler has, thus, not demonstrated an unwarranted sentencing disparity.
Furthermore, Tyler has not demonstrated that his sentence was otherwise
substantively unreasonable.
II. Tyler’s Eighth Amendment Challenge
We review Tyler’s Eighth Amendment challenge for plain error because
Tyler failed to raise this issue in the district court. United States v. Raad, 406 F.3d
1322, 1323 (11th Cir. 2005). “Plain error occurs where (1) there is an error; (2)
that is plain or obvious; (3) affecting the defendant’s substantial rights in that it
was prejudicial and not harmless; and (4) that seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Id. (quotations
omitted).
“The Eighth Amendment, which forbids cruel and unusual punishments,
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contains a narrow proportionality principle that applies to noncapital sentences.”
Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 1185, 155 L.Ed.2d 108
(2003) (quotations omitted). Outside the context of capital punishment, the
Supreme Court has made clear that successful challenges to the proportionality of
sentences are exceedingly rare. Raad, 406 F.3d at 1323. In reviewing an Eighth
Amendment challenge, the defendant has the burden to make a threshold showing
that “the sentence imposed is grossly disproportionate to the offense committed . . .
.” Id. (citations omitted). We have held that, “[i]n general, a sentence within the
limits imposed by statute is neither excessive nor cruel and unusual under the
Eighth Amendment.” United States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir.
2005) (quotation omitted); accord United States v. Johnson, 451 F.3d 1239, 1243-
44 (11th Cir.), cert denied, 127 S.Ct. 462 (2006).
Tyler argues that his sentence was excessive in violation of the Eighth
Amendment. This argument fails because the district court sentenced Tyler to the
statutory maximum on all three counts. Because the court sentenced Tyler within
statutory limits, Tyler has not made the required threshold showing of
disproportionality. Johnson, 451 F.3d at 1243. Thus, Tyler’s sentence did not
violate the Eighth Amendment.
AFFIRMED.
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